ISSUE: Does the retroactive application of 2003 amendments to Ohio’s “Megan’s Law” to sexual offenders whose crimes took place before the effective date of those amendments violate the prohibition in the U.S. and Ohio constitutions against ex post facto laws that impose more severe punishment on an offender “after the fact” of his crime than was applicable to his offense at the time it was committed?

BACKGROUND: Andrew Ferguson of Cleveland was convicted of rape in 1990 and sentenced to a prison term of from 15 to 25 years. (He remained in prison as of the date of oral argument of this case).

In 1996, the Ohio General Assembly adopted legislation widely referred to as “Megan’s Law.” The bill (H.B. 180) required the classification of all future sexual offenders, and of all offenders then serving prison terms for prior sexual offenses, into one of three categories and imposed varying post-release registration and community notification requirements on those offenders according to their respective classifications. In a 1998 decision, State v. Cook, the Supreme Court of Ohio rejected a constitutional challenge to the retroactive imposition of the Megan’s Law registration and community notification requirements on offenders whose crimes were committed prior to the effective date of H.B. 180. In its opinion, the Court held that the registration and community notification requirements were not constitutionally barred as ex post facto provisions because their primary intent and effect was not to impose additional “punishment” on offenders, but rather to protect the community from possible future sex crimes.

Effective in July 2003, the General Assembly adopted new legislation (S.B. 5) that expanded the 1996 Megan’s Law registration and community notification requirements for sexual offenders and imposed a new requirement prohibiting any registered sexual offender, regardless of his or her classification, from “establishing a residence or occupying residential premises” within 1,000 feet of a school.

In 2006, the Cuyahoga County Court of Common Pleas conducted a Megan’s Law hearing in order to establish which category of sexual offenders Ferguson should be placed in. Based on his criminal history and other criteria, Ferguson was classified as a sexual predator and ordered to comply with the most restrictive requirements set forth in the post-2003 version of the statute. Ferguson appealed his classification as a sexual predator to the 8th District Court of Appeals. Among other claims, he asserted that the trial court erred in requiring him to comply with the post-S.B. 5 version of the law because the amendments adopted in 2003 were unconstitutional ex post facto provisions that increased the punishment for his pre-2003 conviction. The 8th District rejected his arguments and affirmed his classification as a sexual predator.

In October 2007, the Supreme Court agreed to review the 8th District’s ruling. [After the Court had accepted jurisdiction in this case and Ferguson had submitted his merit brief, the Supreme Court issued a decision (Hyle v. Porter, announced Feb. 20, 2008) holding that the section of S.B. 5 imposing the 1,000-foot residence restriction, R.C. 2950.031, does not make that provisionretroactive to offenders whose homes were purchased and whose crimes were committed prior to July 2003.]

Attorneys for Ferguson assert that the 1998 Cook decision upholding the constitutionality of the original (1996) version of Ohio’s Megan’s Law was based on the Court’s findings that the statute was “narrowly tailored to comport with the respective danger and recidivism levels of the different classifications of sex offenders,” and that the law included a process by which an offender initially classified as a sexual predator could later seek reclassification and corresponding reductions in his registration and notification requirements by presenting evidence that his likelihood of reoffending had been reduced. They note that the S.B. 5 amendments to the statute eliminated the “tailoring” cited in Cook by making all sexual predator determinations binding for life, regardless of any later evidence of changed risk factors, and by imposing the same lifetime ban on residence near a school on all registered offenders – regardless of their classification and regardless of whether or not their prior offenses involved children. Because the S.B. 5 changes abandoned the measured relationship between an offender’s registration and notification requirements and the likelihood he would commit future crimes, they assert, those amendments changed the intent and effects of the statute from remedial to punitive

Ferguson also argues that, if the Court should hold that its Hyle decision doesn’t bar retroactive application of the 1,000-foot residence restriction to him as an ex post facto law, the residence restriction should still be held to violate the Ohio Constitution by retroactively depriving Ferguson of a substantive right (i.e., the right to live anywhere he chooses) based on a crime he committed before the residency restriction was enacted.

Attorneys for the state respond that the 2003 amendments to Ohio’s Megan’s Law involving registration and community notification are merely adjustments that do not change the remedial (rather than punitive) nature of statutory provisions that the Supreme Court previously upheld as constitutional in State v. Cook.

The state concedes that the Court’s Hyle decision earlier this year appears to rule out retroactive application of the S.B. 5 residency restriction against Ferguson. The state argues, however, that if the language adopted by the legislature does make the residency restriction retroactive to some pre-2003 offenders, the restriction would not be unconstitutional as an ex post facto law because the 1,000-foot residency restriction is rationally related to the intent of the sexual offender statute, which Cook established is not to impose additional punishment, but to protect the community by reducing the probability of future sex crimes directed toward children.

Contacts
Pamela Bolton, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

Does Amended Restitution Law Allow Court to Order Reimbursement to State Crime Victims Fund?

ISSUE: Did 2004 legislative amendments to Ohio’s criminal restitution law eliminate the authority of trial courts to include in an offender’s sentence a requirement that he or she reimburse the state’s Victims of Crime Reparations Fund for payments the fund has made to a victim of the offender’s crime?

BACKGROUND: In March 2006 Charles Bartholomew entered a guilty plea and was convicted of raping his 12-year-old daughter. In addition to a prison term and other sanctions, the Crawford County Court of Common Pleas included in his sentence an order that Bartholomew reimburse the state’s Crime Victims Fund for $426 the fund had previously paid to his wife to cover the costs of obtaining psychiatric counseling for their daughter.

Bartholomew appealed his conviction and sentence. On review, the 3rd District Court of Appeals affirmed his conviction and prison term, but vacated the restitution order. In doing so, the court of appeals cited the Supreme Court of Ohio’s 2006 observation in State v. Kreischer that legislative amendments to the state criminal restitution statute, R.C. 2929.18, adopted in 2004 had removed previous statutory language authorizing courts to order restitution of costs incurred by “third parties.” Since the reimbursement ordered by the court in this case was neither to the actual crime victim or her mother, but to the Victims Fund, the 3rd District held that Kreischer precluded enforcement of that order.

Attorneys for the state now ask the Supreme Court to overrule the court of appeals and reinstate the restitution order payable to the victims fund. They argue that in arriving at its ruling, the court of appeals ignored specific language in R.C. 2929.18 that was retained by the legislature in its 2004 revision of the statute that authorizes restitution not only to victims, their families and to the court itself, but also to “another agency designated by the court.” They point out that the Kreischer decision addressed court-ordered restitution to a crime victim’s private insurance carrier for medical payments the insurer had made on behalf of its policyholder. They argue that while the 2004 amendments to the statute may now bar reimbursements to a private “third party,” the legislature’s retention of specific language authorizing restitution to an “agency designated by the court” clearly indicates intent to permit the continuing use of restitution by criminal offenders to replenish the victims fund and other governmental sources that meet the definition of a “public agency.”

Attorneys for Bartholomew respond that the “third party” restitution language formerly included in R.C. 2929.18 that the legislature deleted in 2004 specifically addressed both public and private “third parties,” and included the Victims of Crime Reparations Fund. They argue that the intent of the legislature in amending the restitution statute was to free the state’s trial courts from functioning as debt collection agencies for non-victims seeking reimbursement from generally indigent criminal offenders. They note that the victims fund retains the ability to seek reimbursement of its payments to an offender’s victims by filing civil collection actions to attach the proceeds of a prisoner’s pay while incarcerated and/or after the offender has been released and reemployed.

Contacts
Stanley Flegm, 419.562.9782, for
the Crawford County prosecutor’s office.

William P. Marshall, 614.466.8980, for the Ohio Victims of Crime Reparation Fund.

Did BTA Err In Affirming Commissioner’s Ruling
on Taxability of Trust Earnings Without a Hearing?

ISSUE: Did the Board of Tax Appeals err in affirming a tax commissioner’s ruling assessing personal income tax liability against the grantors of an Electing Small Business Trust: a) by failing to enforce the taxpayers’ demand for discovery from the commissioner, and/or b) by deciding the case without conducting a hearing, based on the BTA’s determination that prior Ohio Supreme Court decisions were controlling precedents that defeated the taxpayers’ claims?

BACKGROUND: Keith Brown and Noel Brown (the latter now deceased), have exercised their right to appeal to the Supreme Court from a ruling of the State Board of Tax Appeals (BTA). The Browns argue that the BTA should have reversed a ruling by the State Tax Commissioner that improperly assessed Ohio personal income tax liability against them for the 2000 tax year based on income that was earned during that year by an Electing Small Business Trust that the Browns controlled as grantors.

In a case that involves technical interpretation of federal and state tax regulations, the Browns raise two different sets of challenges to the BTA’s denial of their appeal. They argue that:

The BTA’s ruling must be vacated on procedural grounds because the board violated the Browns’ due process rights by failing to enforce their demand for discovery from the tax commissioner and by failing to conduct a hearing on their appeal before rejecting it.

They also argue that the BTA’s ruling was wrong as a matter of law because the board based its holding on two prior Supreme Court of Ohio decisions that involved facts materially different from the facts of their case.

Attorneys for the tax commissioner respond that the BTA acted within its discretion in deciding the merits of the taxpayers’ appeal based on the parties’ written pleadings, which they say clearly established that the appellants were raising the same legal arguments that had been considered and rejected by the Supreme Court in two prior decisions. In those decisions, they argue, the Court held that the earnings of grantor trusts, including Electing Small Business Trusts, were taxable to the grantors as personal income and were not exempt from state tax as income earned by the trust as a separate tax entity.

Does Driver’s Crossing of Road Edge Line Give Police ‘Reasonable Suspicion’ To Support Traffic Stop?

ISSUE: May a police officer who witnesses a motorist drive cross a white road edge line, without further evidence of erratic or unsafe driving, make a constitutional traffic stop of that motorist?

BACKGROUND: In June 2006, a state trooper witnessed the car of Christopher Mays “drift” across the white road edge line on a four-lane state highway near Newark, then steer back into its lane of travel and continue on. The trooper activated his in-car camera and followed Mays’ vehicle for approximately 1 ½ miles, during which time he observed no traffic law violations or erratic or unsafe driving, before stopping Mays. Based on evidence obtained through the traffic stop, Mays was subsequently arrested and charged with DUI.

At trial, Mays filed a motion to suppress the evidence obtained through the traffic stop on the basis that the trooper did not have probable cause or grounds for “reasonable suspicion” that Mays had violated a traffic law before stopping him. The trial court agreed that the trooper did not have a sufficient legal basis to make a traffic stop and dismissed the DUI charge. On review, the 5th District Court of Appeals reversed and reinstated the charge against Mays.

Mays now asks the Supreme Court to overrule the court of appeals. His attorneys argue that the “traffic offense” the trooper claimed to have observed was failure to remain within a marked lane of traffic in violation of R.C 4511.33. They point out, however, that the “marked lane” statute does not prohibit driving across a road edge line, but merely requires that motorists not move from one marked lane of traffic into another “until the driver has first ascertained that such movement can be made with safety.” They point to a number of situations in which motorists are legally permitted to pass a stopped or turning vehicle by driving across a road edge line as long as they do not create an unsafe situation or drive on an unpaved shoulder, and thus assert that merely driving on or across a road edge line, without more, is not a violation of the law. They argue that the trial court was correct in ruling that the neither the pre-stop observations cited by the trooper nor the video from his in-car camera showed that Mays’ driving conduct prior to being stopped was: a) a violation of any traffic law, or b) sufficiently dangerous or erratic conduct to create a reasonable suspicion that he was driving in an unsafe condition.

The state, represented by the Licking County prosecutor’s office, responds that R.C. 4511.33 does not give a motorist permission to drive outside of a marked lane of travel or to weave back and forth between lanes at will as long as he does not cause an accident or endanger others, but requires drivers to drive “as nearly as practicable, entirely within a single lane.” They argue that the statutory language addressing changing lanes safely applies when an obstruction to travel such as a stopped vehicle, pedestrian or debris in the roadway makes it “impracticable” for a driver to stay in a single marked lane, but does not authorize driving across the road edge line when there is no obstruction or other reasonable basis to drive outside a marked lane. Under that interpretation of the marked lane statute, they assert, Mays’ conduct in driving across the road edge line that was observed by the trooper was a traffic law violation and therefore created probable cause for the officer to stop his vehicle.

Contacts
Tricia M. Klockner, 740.670.7880, for the state and Licking County prosecutor’s office.

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